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2019 (12) TMI 115

..... se - refund arising due to difference in the foreign exchange rate - refund claim was filed before the Assistant Commissioner on 30 May, 2017 pertaining to the period from June 2016 to August 2016 and January 2017 to March 2017 under Section 11 (B) of the Act - according to the Appellant, the appeal that was filed before the Commissioner (Appeals) on 4 September, 2018 was within sixty days from the date of communication of the order and could not have been rejected as being barred by time - refund rejected also on the ground of unjust enrichment. Whether the order dated 29 August, 2017 had actually been served upon the Appellant on 12 September, 2017 as contended by the Department or on 6 August, 2018 as contended by the Appellant? - Difference of opinion - present matter has been referred to third member by Hon’ble President on account of difference of opinion in the Bench comprising of Hon’ble President and Hon’ble Member (Technical). HELD THAT:- The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187 .....

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..... he same conclusion that the Order-in-Original is claimed to have been dispatched through Range office. Examination of the speed post register maintained at the division office indicates the speed post no. ER9241875719IN. In the affidavit of the Asst. Commissioner at para 2 it is stated that the order has been sent to Range office for delivery - further verification of the speed post register, if at all maintained in the Range Office, would not yield any positive result in as much as the register in the Range office would also show the same speed post number. Receipt of the said speed post letter not disputed by the appellant. It is only the content of the speed post letter ER9241875719IN which is in dispute. As far as the role of the officers of the department is concerned in furnishing the report, it is not clear as to what short of verfication conducted and whether it is ascertained the order dated 29.8.2017 remained to be dispatched at the Range office or at the Division office itself; the affidavit also does not disclose about the lapse relating to delivery of the Order - it remains with the authority to examine internally about the lapse on the part of the officers. But, as fa .....

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..... cause notice dated 9 August, 2017 was, however, issued by the Assistant Commissioner seeking an explanation from the Appellant as to why the refund claim filed by the Appellant should not be rejected. A detailed reply was filed by the Appellant, but the Assistant Commissioner by order dated 29 August, 2017 rejected the refund claim. 3. It transpires that the Appellant had previously filed another refund claim on 24 March 2017 for the period March 2016 to May 2016 for approximately an amount of ₹ 117,50,76,655/-. It is stated that the said refund claim was filed on grounds almost similar to the grounds raised in the refund claim out of which the present Appeal arises. The Adjudicating Authority rejected the said refund claim, but the appeal filed by the Appellant before the Commissioner (Appeals) was allowed by order dated 8 June, 2018 holding that the Appellant had paid excess Oil Cess during the period March 2016 and May 2016 and that the Appellant had not been unjustly enriched. It is further stated that after the Appellant received the said order dated 8 June, 2018, it submitted an application dated 2 August 2018 for payment of the amount under the aforesaid order and also .....

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..... of issue. Therefore, this office vide letter dated 25.10.2018 has asked the adjudicating authority to intimate the actual date of delivery of the impugned order along with the documentary proof. The adjudicating authority vide letter dated 20.11.2018 has informed that the OIO was issued on 29.08.2017 and the same has been sent through speed post No. ER92418751IN dated 01.09.2017 and same has not been returned back as per their office record. Further to ascertain the actual date of delivery of impugned order to the appellant, this office vide letter dated 03.12.2018 & 27.12.2018 has asked Postal Department, Jodhpur to intimate the actual date of delivery of the impugned order. The Postal Department, Jodhpur vide their letter F. No. CCC/Jodh HO dated 04.12.2018 has informed that the said speed post No. ER92418751IN dated 01.09.2017 has been distributed to receiver on 12.09.2017 by the Branch Post Office, Bandra (Kawas). 6.2 I find that the Appellant contested that they were informed vide dated 02.08.2018 by the adjudicating authority that the matter has been decided and Order rejecting the refund claim has already been issued. Since, the appellant was not in receipt of the said .....

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..... incorrect. It has been stated that the envelope of the aforesaid speed post sent on 1 September 2017 bearing no. ER924187517IN contained a letter number C.No.: CE-5/02/Vedanta/Royalty/17-18/1740 that was issued by the Superintendent, Central Goods and Service Tax, Range-II (Balotra), Jodhpur in the Range Office and related to an entirely different matter. It has been emphasized that the said envelope did not contain the order dated 29 August 2017 and the said envelope was also not sent by the Assistant Commissioner, Central Goods and Service Tax, Division-B, Jodhpur in the Division Office who had passed the order dated 29 August, 2017 but was dispatched by the office of the Superintendant in the Range Office and, therefore, proof of delivery of this envelope on the Appellant on 12 September 2017 had nothing to do with the service of the original order upon the Appellant. Grounds D and E that mention the aforesaid facts are reproduced below: D. On checking internally with the Appellant s staff, the Appellant found that it had not received any consignment with Speed Post No. ER924187517IN dated 01.09.2017 (received on 12.09.2017), rather it had received a Departmental communication .....

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..... ction of the records was requested on 20 February 2019 and the inspection was allowed on 20 February, 2019. On the basis of the inspection carried out, an affidavit of the two advocates who had inspected the records has also been filed with this Appeal and it is reproduced below: AFFIDAVIT Affidavit of Shir D.K. Nayyar S/o Shri H.C. Nayyar and Shri Shubham Tyagi S/o Shri Parag Sharma both working as Advocates with CTS Law firm having office at A-3/31, Sri Sai Kunj, Sector D-2, Vasant Kunj, New Delhi-110070. Both of us had undertaken inspection of Dispatch Register and Speed post Register before the Assistant Commissioner Central Goods and Service Tax, Division-B, Jodhpur on 20/02/2019. As a result of inspection we solemnly affirm and state as under- With regard to Speed Post Register- 1. That on the relevant page the party name was written in Hindi except Vedanta limited which was written in English and M/s Vedanta Limited was written with a different pen when compared with other entries on the said page. 2. That the Speed Post Register contained the Speed post No. series from 28/08/2017 to 13/09/2017 starting from No. ER90…. except the Speed Post No. mentioned under dated 0 .....

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..... sent by Speed Post No. ER92418751IN (should be ER924187517IN) dated 1 September, 2017 to the appellant and the same was not returned back as per their office record. The Commissioner (Appeals) also noted that the Postal Department informed, on a query made by the Commissioner (Appeals) that the aforesaid letter was actually delivered to the Appellant on 12 September 2017 by the Branch Post Office, Bandra (Kawas). 2. Shri Alok Aggarwal, learned Counsel of the Appellant has placed before us the envelope bearing Speed Post No. ER924187517IN and has stated that the envelope in fact contained a letter dated 1 September, 2017 bearing No. 1740 sent by the Office of Superintendent, Central Goods and Service Tax Range. He has also placed copy of the envelope sent by office of the Assistant Commissioner, Central Goods and Service Tax, Range-B bearing Speed Post No. ER956930766IN, containing the Order-in-Original which the Appellant received on 11 August, 2018, though it was earlier received by the Appellant by hand on 6 August, 2018. 3. Learned Counsel for the Appellant has also placed the copy of the despatch register and speed post register which were supplied to him on 5 February 2019 und .....

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..... No. 502 and 503 of this appeal. The respondent shall also place the original despatch register and the speed post register on 10 May, 2019. The registers shall be brought by a responsible officer of the Department in a sealed cover. It is made clear that no tampering of the record shall be undertaken by the respondent in the register. 11. Pursuant to the aforesaid order, the Assistant Commissioner has filed an affidavit, which is reproduced below: Both the register viz. Speed post register and dispatch register are maintained by a dealing assistant namely Mrs. Sunita Java, aged about 52 years, who is an MTS (Multi Tasking Staff) posted in Division office since 2015. To ascertain the facts, a statement of Mrs. Sunita Java was taken by me on 08.05.2019. After examination of the Affidavit submitted by Sh. Shubham Tyagi & Sh. D.K. Nayyar, dispatch register, speed post register and the statement made by the dealing assistant, I solemnly affirm and state as under:- With regard to Speed Post Register:- 1. Name of the assessee was written as M/s Vedanta Limited in the Order in Original No. 28/2017-R dated 29.08.2017 and the same has been copied by the dealing assistant in the speed po .....

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..... en up, learned Authorised Representative of the Department has submitted the original dispatch register and the original speed post register. Scanned copies of the relevant page 80 of the Speed Post Register with an earlier page and the subsequent page are as follows: 13. Learned Counsel for the Appellant has made the following submissions: (i) The order dated 29 August 2017 was received by the Appellant by hand only on 6 August 2018 and the Appellant also received a copy of the said order sent on 6 August, 2018 by speed post on 11 August 2018. The Appeal filed by the Appellant on 4 September, 2018 was, therefore, within the time stipulated of 60 days from the service of the order as provided for in Section 35 (1) of the Act; (ii) What document was actually contained in the envelope sent by speed post bearing No. ER924187517IN on 1 September, 2017 was a letter dated 1 September 2017 with No: C.No.: CE-5/02/Vedanta/Royalty/17-18/1740. This envelope containing the said letter was received by the Appellant on 12 September 2017. The envelope was sent by the Superintendant, Central Goods and Service Tax, Range II (Balotra), Jodhpur (Rajasthan) in the Range Office with subject licence gr .....

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..... ce upon the assessee and, thereafter, the said order was sent to the Appellant by the said Range Office by speed post is apparently incorrect for the reason that no supporting documents to substantiate the said statement have been filed; (vii) It is also difficult to comprehend as to how postal expenses could have been minimised in requiring the Balotra Range Office to serve the order upon the Appellant, when both the Division Office and the Balotra Range Office are located in the same city. In fact, a lame excuse has been made by the Assistant Commissioner in the affidavit that it is a common practice to send the post through Range office. The show cause notice and the order sent to the Appellant on 6 August 2018 by speed post were sent from the Division Office and not the Range Office. (viii) The Department should have maintained proof of delivery of the service of the order in accordance with Section 37C of the Act, particularly when the limitation provided for in Section 35(1) of the Act requires an appeal to be filed within sixty days from the date of the communication of the order, but that was not done. 14. Learned Authorised Representative of the Department has, however, su .....

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..... ted 29 August, 2018, according to the Appellant, was then made available to the Appellant by hand on 6 August, 2018 and the order was also sent to the Appellant on 6 August, 2018 by speed post bearing no. ER956930766IN from the office of the Assistant Commissioner, Central Goods and Service Tax, Division-B, Jodhpur. It was received by the Appellant on 11 August, 2018. Thus, according to the Appellant, the appeal that was filed before the Commissioner (Appeals) on 4 September, 2018 was within sixty days from the date of communication of the order and could not have been rejected as being barred by time. 18. The Commissioner (Appeals) did not accept the contention of the Appellant that the limitation for filing the appeal would commence from 6 August, 2018, on which date the order was made available to the Appellant. According to the Commissioner (Appeals), the order dated 29 August, 2017 had been served upon the Appellant on 12 September, 2017 through an envelope that was sent by speed post on 1 September, 2017, bearing no. ER924187517IN. 19. Thus, what has to be examined in this Appeal is whether the order dated 29 August, 2017 had actually been served upon the Appellant on 12 Sept .....

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..... a gap of three lines between the line containing the last entry of date 31 August, 2017 and the line in which date 4 September, 2017 is written in the speed post register. There is also no gap of any line after the date 1 September 2017 is written and the entry of this date. This gap of one line exists in all other entries relating to dates 28 August 2017, 31 August 2017, 4 September 2017, 6 September 2017 and 8 September 2017 contained in the three pages of the speed post registers, scanned copies of which have been reproduced. In fact, a perusal of the speed post register indicates that even for the other dates there is a gap of at least one line after a particular date is mentioned and the entry for that particular date. The inevitable conclusion, therefore, that follows is that the entry relating to date 1 September 2017 was subsequently inserted in between the two dates 31 August 2017 and 4 September 2017. 23. This apart, whereas all the earlier speed post numbers on the relevant page and the other pages from date 23 June 2017 upto 20 September, 2017 begin with ER90...., the speed post number of the envelope relating to date 1 September, 2017 begins with ER92.... 24. The fact .....

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..... ER924187517IN was sent by speed post to the Appellant on 1 September 2017. There is no mention in this entry that the entry has been made on the basis of any information supplied by the Range Office. A perusal of the entry clearly indicates that the envelope was dispatched by the Division Office to the Appellant on 1 September 2017 by speed post bearing no. ER924187517IN. 27. The further explanation in the affidavit of the Assistant Commissioner that it is a common practice to send the posts through Range Office to minimise the postal expenses, is also not acceptable. Both the Division Office and the Range Office are situated in the same city and, therefore, postal expenses could not have been minimised. In fact an officer would also have to carry it from the Division Office to the Range Office and only thereafter, send it by speed post. This practice is also belied from the fact that the show cause notice that was sent to the Appellant was dispatched from the Division Office and even the order subsequently sent by speed post to the Appellant on 6 August 2018 was dispatched from the Division Office. This apart, the alleged said practice is not supported by any documentary evidence. .....

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..... Range Office who had passed the order. This fact has also been mentioned in the order dated 11 April, 2019 passed by the Tribunal. In fact, in the affidavit filed by the two advocates after inspection of the records, a statement was made that no evidence of service of the order dated 29 August 2017 was produced nor any evidence for service of Speed Post No. ER924187517IN was produced. 32. Learned Authorised Representative of the Department has not controverted this fact nor any register has been placed to demonstrate when and how the said letter dated 1 September, 2017 was sent to the Appellant. The affidavit filed by the Assistant Commissioner is also silent on this issue All that the learned Authorised Representative of the Department or the Assistant Commissioner had to do was mention about the records of the Range Office regarding service of the said letter dated 1 September 2017, which the Appellant had categorically stated was sent by the Range Office in an envelope bearing No. ER924187517IN. Sufficient opportunity was given to the Department to explain this issue. If the Contention of the Appellant was not correct, the Department would have placed evidence to show how this .....

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..... every order shall be deemed to have been served on the date on which the order is tendered or delivered by post or courier. The Department has not maintained proof of delivery of the orders as all that was stated by the Office to the Commissioner (Appeals) is that the envelope sent by speed post did not return back. It is seen that it is only after the filing of the appeal before the Commissioner (Appeals), that a confirmation was sought from the post office regarding delivery of the envelope bearing no. ER924187517IN. 37. It is also pertinent to note that the Appellant had contended in the Appeal filed before the Commissioner (Appeals) that the order was served only on 6 August 2017. In such a situation if any subsequent information was sought by the Department from the Post Office, it was necessary for the Commissioner (Appeals) to have apprised the Appellant that the order had been served on 12 September 2017 and given him an opportunity to explain, if the Appeal was to be dismissed on the ground of limitation but no opportunity was provided to the Appellant and an order was straight away passed dismissing the Appeal as being time barred. 38. Thus, for all the reasons stated abo .....

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..... he Commissioner (Appeal), on enquiry, found that the adjudicating authority had forwarded the order to the Appellant by speed post No. ER92418751IN dated 01.09.2017 (should be ER 92418751IN dated 01 September, 2017) as per the procedure prescribed under Section 37C of the Excise Act and same was not returned back as per the adjudicating authority office record. Also, the learned Commissioner (Appeal) confirmed from the Post Office that the speed post bearing no. ER92418751IN (ER92418751IN) dated 01.09.2017, had been delivered to the Appellant on 12.09.2017. 42. While the appeal was being heard on the previous occasion by the Tribunal, an Interim Order No. 23/2019 dated 11.04.2019 was passed which is reproduced as under; The Commissioner (Appeals) by order dated 1 January, 2019 dismissed the appeal filed by the appellant against the Order-in-Original dated 29 August, 2017 for the reason that it was filed beyond the period stipulated in Section 35F of the Central Excise Act, 1944. In the appeal form, the appellant contended that it received the Order-in-Original on 6 August, 2018. The Commissioner (Appeals) doubted this contention of the appellant as according to him there was an abn .....

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..... ame of the sender, as in the other entries of 31 August 2017 and 4 September, 2017, mentions the name of the recipient as Vedanta Limited and the Speed Post number begins with ER824, whereas all the other Speed Post numbers in this page contained in entries of 31 August, 2017 and 4 September, 2017 bear Speed Post numbers beginning with ER902. 7. Learned Counsel for the appellant has also placed the affidavit of two Advocates namely Shubham Tyagi and Shri D.K. Nayyar who had undertaken the inspection of speed post register and despatch register on 20 February 2019. They have stated in the affidavit that the entry against date 1 September 2017 appears to have been inserted as not only it bore a speed post number beginning with 824 but Vedenta Limited was written in English, whereas the other entries were written in Hindi and in a different style when compared with the other entries on the said page. 8. As noticed above, the appeal was dismissed by the Commissioner (Appeals) only for the reason that since the Order-in-Original was served upon the appellant on 12 September 2017, the appeal was filed beyond the period provided in Section 35F of the Central Excise Act. 9. In this view of .....

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..... r on affidavit that the order dated 29.08.2017 was handed over to the concerned Range Officer by hand for sending through Speed post is not very common, but the same has been averred by Deputy Commissioner, it needs to be given a credence. However, in order to dispel any doubt about the exact dispatch of Order-in-Original by speed post from Range office, it is pertinent to examine the speed post register of Range office. Regarding the Dispatch Register nothing is conclusive as to whether the entry at serial no. 1555 does not pertains to the Appellant but to Range Balotra. Accordingly, I am of the view that a fresh inquiry is required to be conducted in order to ascertain the fact, as to whether the Range Officer has dispatch the adjudication order or the other letter dated 1 September, 2017. 45. I, therefore, am of the view that the detailed enquiry is required to be done in regard to the speed post register being maintained by the Range Office Balotra, and also the Receipt register of the appellant which will only disclose the truth regarding the alleged manipulation of records. (Dictated and pronounced in the open Court) (BIJAY KUMAR) MEMBER (TECHNICAL) As divergent views have be .....

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..... nt had also filed a refund claim earlier on 24th March, 2017 on the same issue for an amount of ₹ 117.00 crores (approx.) and on rejection of the said refund claim by the Asst. Commissioner they filed an appeal before the learned Commissioner (Appeals), who in turn, allowed their appeal vide order dated 08th June, 2018. Also, another refund claim amounting to ₹ 1.70 crore filed subsequently was allowed on 23.07.2018 and it was received on 31.07.2018. 6. Since the second refund claim dated 30th May 2017, where hearing was completed on 21st August, 2017 but the order was not received, the Appellant approached the Adjudicating Authority on 02nd August, 2018 to ascertain the status. They were informed by the department that the order was already issued on 29th August, 2017. Consequently, the Appellant on 03rd August, 2018 requested the Adjudicating Authority for providing a copy of the order, since the same was not received by them. A copy of the order dated 29.08.2017 was handed over to them on 06th August, 2018 and also attested copy of the order was received by them on 11th August, 2018 through speed post. Consequently they filed the appeal on 04th September, 2018 before .....

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..... of the Commissioner (Appeal) on 8th June, 2018, and also since their third refund claim for ₹ 1.70 crore was also sanctioned by the Assistant Commissioner on 23rd July, 2018, they approached the Adjudicating Authority to ascertain the status of the second refund claim filed on 30th May, 2017 for ₹ 9.34 crores, where the hearing was completed on 21.08.2017. They came to know that the order on the said refund claim was issued on 29th August, 2017. A copy of the same was requested on 03.08.2018 to initiate necessary action on the same, which was handed over to them on 06th August 2018 and also attested copy of the same was sent by speed post, received by them on 11th August 2018. It is his contention that they have not received the order prior to 6th August, 2018. 11. Assailing the report of the Asst. Commissioner relating to delivery of the order through speed post on 1st September, 2017 bearing no. ER924187517IN, relied by the Ld. Commissioner(Appeals) in the impugned Order, it is his contention that no doubt the said speed post was received by them from the Range Office, but the content in the envelop was different. It is his contention that the envelope with speed pos .....

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..... he order was delivered on 06th August, 2018 by hand delivery/11th August, 2018 through speed post, and the time limited prescribed under Section 35(1) of CEA, 1944, has been adhered to or otherwise. 15. The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187517IN issued on 01.9.2017 and the envelope bearing speed post no. ER956130766IN with its contents received by the Appellant on 11.8.2018 are also presented. The size of the former envelope is of 23cm×10cm and is a window envelope, whereas the second one is of 27cm×12cm size. On examination of these envelopes, it has been fairly accepted by all concerned that the first envelope is not fit enough to contain the order dated 29.08.2017, which of eleven pages and legal size paper. Also the postal charges levied for speed post of both letters are different, the second one with higher charge the weight being 90gms, therefore, the order dated 29.08.2017 could not have been dispatched in the envelope containing speed post no. ER9241875719IN, for which minimum speed .....

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..... office indicates the speed post no. ER9241875719IN. In the affidavit of the Asst. Commissioner at para 2 it is stated that the order has been sent to Range office for delivery. Considering the categorical affirmation of the Asst. Commissioner in the affidavit that the Order was handed over to the Range for further delivery to the Appellant and the speed post no ER9241875719IN mentioned in the division office register on the information of the range, Hon ble president after analysis of other circumstances arrived at the conclusion that the Order 29.8.2017 was not delivered to the Appellant on 12.9.2017 but on 06.8.2018, Whereas the Hon ble Member (Technical) observed to initiate further inquiry at the Range Office. 21. In my opinion further verification of the speed post register, if at all maintained in the Range Office, would not yield any positive result in as much as the register in the Range office would also show the same speed post number. Receipt of the said speed post letter not disputed by the appellant. It is only the content of the speed post letter ER9241875719IN which is in dispute. An examination of the envelopes a man of ordinary prudence would definitely reach to th .....

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